Cosby's Attorneys: Oral Nonprosecution Agreement Enforceable

Cosby's Attorneys: Oral Nonprosecution Agreement Enforceable Sam Aronov Bill Cosby

Attorneys for Bill Cosby have struck back against the Montgomery County district attorney’s contention that the comedian is seeking “special treatment” from the courts, arguing that the comedian’s oral nonprosecution agreement with a former district attorney is enforceable.

Cosby’s attorneys stood by his petition for writ of habeas corpus and motion to disqualify the Montgomery County District Attorney’s Office, filing an opposition to Montgomery County District Attorney Kevin Steele. The filing said Cosby is seeking to enforce a 2005 nonprosecution agreement, and alleges that Steele prejudiced him in his recent election campaign by calling him a sexual predator and criticizing former District Attorney Bruce Castor’s decision not to prosecute.

“He is asking that his due process rights not be violated by prosecutors waiting until critical evidence is lost—such as evidence here of the nonprosecution agreement that was lost when Mr. [Walter M.] Phillips [Jr.] passed away—before pursuing 12-year-old allegations it had agreed not to pursue,” the filing said.

Cosby filed the petition and motion to disqualify Jan. 11. He argued that he had an express agreement with the District Attorney’s Office in 2005, through Castor, that Cosby would never be prosecuted with respect to allegations of sexual assault by Andrea Constand, who later sued Cosby and agreed to a confidential settlement in 2006.

Steele said in his motion to dismiss Cosby’s petition that only a judge can issue a grant of immunity, and that has not happened in Cosby’s case. He said Cosby is seeking special treatment in filing his petition.

Cosby’s attorneys argued that the statutory requirements for immunity relied upon by the prosecutors, under 42 Pa. C.S. Section 5947, do not govern every type of nonprosecution agreement. Deciding who can be shielded from prosecution is the responsibility of prosecutors, they said, not the courts.

“The commonwealth provides no authority remotely suggesting that a prosecutor can agree not to prosecute a defendant only by a court order pursuant to Section 5947,” the filing said.

Cosby’s attorneys also said agreement between a prosecutor and defendant must be analyzed under contract law standards, and that oral agreements by prosecutors in exchange for a plea or other consideration are routinely enforced.

With regard to Steele’s campaign, Cosby contented that the Rules of Professional Conduct preclude a prosecutor from making statements that are likely to heighten the public condemnation of an accused person.

Cosby was charged Dec. 30 with one count of aggravated indecent assault, a felony. The charge arose from allegations by Constand, who came to know Cosby through her employment at Temple University. The District Attorney’s Office had investigated the allegations in 2005 when Castor was district attorney, but chose not to prosecute.

Cosby is being represented by Brian J. McMonagle of McMonagle, Perri, McHugh & Mischak, Monique Pressley of The Pressley Firm, and Christopher Tayback and Joseph Sarles of Quinn Emanuel Urquhart & Sullivan.

Lizzy McLellan can be contacted at 215-557-2493 or lmclellan@alm.com. Follow her on Twitter @LizzyMcLellTLI.

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